Opinion
Argued June 6, 1901
Decided June 14, 1901
Barclay E.V. McCarty and Jared G. Baldwin, Jr., for appellants.
Joseph A. Flannery and John J. Hynes for respondent.
The respondent, Mary Hynes, was the owner of property taken in laying out Jerome avenue. On the 17th of May, 1893, she entered into a written contract with one Granville P. Hawes as her counsel to pay him for his services three per cent of any and all sums awarded to her for property taken, the sum to be in full for his services. It was further agreed that counsel should be paid nothing in case of failure to obtain award.
On the 29th of December, 1893, Granville P. Hawes died, and his partner, Barclay E.V. McCarty, took his place under an agreement with Mrs. Hynes to act on the same terms as formerly existed between her and said Hawes, and he was duly substituted as her attorney on the 16th day of January, 1894.
On the 6th day of August, 1894, George W. Dease was substituted as the attorney for Mrs. Hynes in the place of McCarty and with his consent.
On the 13th day of June, 1895, the report of the commissioners was duly confirmed, awarding Mrs. Hynes the sum of $21,340.90 for property taken. Three per cent of this sum is $640.22, and when the city paid Mrs. Hynes her award this latter amount was retained in order to protect the lien of the estate of Mr. Hawes and the lien of Mr. McCarty. The amount was paid into court in pursuance of its order, which directed that it was not to be paid over to Mrs. Hynes until the determination of the amount of compensation for services rendered to her due to McCarty and the estate of Hawes.
It was further ordered that a lien upon the amount so retained should exist in favor of the estate of Hawes and McCarty. It was further ordered that the estate of Hawes and the said McCarty should have a lien on the amount so retained under the agreements with Mrs. Hynes. It was also ordered that in case compensation was not paid to McCarty and the estate of Hawes upon the confirmation of the report of the commissioners, that application might be made for the appointment of a referee to hear and determine the amount due McCarty and the estate of Hawes for services rendered under their respective agreements.
In pursuance of this order a referee was appointed, and instead of limiting the inquiry to what portion of the three per cent was due to the estate of Hawes and to McCarty respectively, the referee held that he was at liberty to ascertain upon proofs offered the amount due the estate of Hawes and McCarty on a quantum meruit. In his report he found that the estate of Hawes recover $740.40; that McCarty recover the sum of $2,961.57, and that McCarty and the estate of Hawes recover the sum of of $1,329.80 costs and disbursements. Judgment was ordered against Mrs. Hynes for the aggregate of these amounts.
The learned Appellate Division reversed the order entered and docketed herein, with costs in that court and the court below to said Mary Hynes.
We agree with the Appellate Division that the referee was confined to apportioning the lien of the estate of Hawes and the claim of McCarty to the fund paid into court, but are of opinion that a final disposition should be made of a litigation which in its scope is entirely unauthorized.
The order of the Appellate Division and the adjudication entered thereon taxing costs at the sum of $448.43 in favor of Mary Hynes is modified so as to establish the lien of the estate of Hawes and Barclay E.V. McCarty upon the fund paid into court, and directing that the whole thereof, to wit, $640.22, be paid to them, less the costs so adjudged therein to be due to Mary Hynes, which sum must be paid to her, and as thus modified the order and adjudication thereon is affirmed without costs of this appeal to either party.
PARKER, Ch. J., BARTLETT, HAIGHT, VANN, LANDON, CULLEN and WERNER, JJ., concur.
Ordered accordingly.